Local Court of New South Wales CITATION: R v Gary Patrick GUISA [2009] NSWLC 10 JURISDICTION: Criminal PARTIES: Director of Public Prosecutions Gary Patrick GUISA FILE NUMBER: PLACE OF HEARING: Albury Local Court DATE OF DECISION: 04/30/2009 MAGISTRATE: Magistrate Lerve CATCHWORDS: CRIMINAL LAW – Reckless wounding – plea of guilty following negotiations – "glassing" – use of weapon (glass) aggravating feature – deterrent sentence required LEGISLATION CITED: ss 33, 35(4) Crimes Act 1900ss 3A, 5, 9 Crimes (Sentencing Procedure) Act 1999 De Simoni v The Queen (1981) 147 CLR 383 R v Boney [2008] NSWCCA 313 R v Borkowski [2008] NSWCCA 102 R v Corbett [2008] NSWCCA 42 R v Doan (2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 CASES CITED: R v Kite [2008] NSWDC 7 R v McCullough [2009] NSWCCA 94 R v McKenna [2007] NSWCCA 113 R v Nowak [2008] NSWCCA 89 R v Sayin [2008] NSWCCA 307 R v Sullivan & Skillin [2008] NSWCCA 290 R v Wright [2009] NSWCCA 3 TEXTS CITED: Director of Public Prosecutions (Prosecution) REPRESENTATION: Mr P C Reddy (Offender) ORDERS: 1. The offender is convicted. 2. Consequent upon that conviction the offender is sentenced to a non-parole period of 11 months to commence on 19 July 2008 and expire on 18 June 2009. Thereafter I specify a balance of term of 8 months to commence on 19 June 2009 and expire on 18 February 2010. REMARKS ON SENTENCE 1. The offender pleaded guilty to the charge of Reckless Wounding contrary to s 35(4) of the Crimes Act 1900 on 23 March 2009. Previously the offender had been charged with Maliciously Inflicting Grievous Bodily Harm with Intent to cause Grievous Bodily Harm contrary to s 33 of the Crimes Act. The plea to the charge of Reckless Wounding was following protracted plea negotiations between the representatives of the Director of Public Prosecutions and the solicitor for the offender. 2. Initially, the question arises as to the utilitarian value of the plea. According to the original court papers the matter had been before this court on 10 occasions before the plea of guilty to the charge of Reckless Wounding was entered. When the matter was before me on 20 April 2009 the Crown argued that the utilitarian value of the plea was 'something less" than 25% and today submitted that the discount should be 15%. Mr. Reddy who appears for the offender initially maintained that the offender is entitled to the full 25% discount for the utilitarian value of the plea, but today submitted that the discount should be 20%. 3. The issue of the utilitarian value of the plea following plea negotiations has been the subject of recent decisions of the Court of Criminal Appeal, namely R v Sullivan & Skillin [2008] NSWCCA 290 at [14]-[16] per Howie J (McClellan CJ at CL, Grove J agreeing); R v Boney [2008] NSWCCA 313 at [18]-[26] per Hulme J (McClellan CJ at CL, Hidden J agreeing), and R v Borkowski [2009] NSWCCA 102 at [32] per Howie J. In the circumstances of the matter presently under consideration I am of the opinion that it is not appropriate to allow the full 25% discount for the utilitarian value of the plea. However, I propose to err on the side of generosity to the offender and allow a 20% discount for the utilitarian value of the plea. Facts 4. The matter proceeded by way of agreed facts, which for the sake of convenience I will recite in full: "The offender is 23 years old and was unknown to Andrew Michael Klemm (victim) at all material times relating to this incident. On Friday 19th July 2008 the offender commenced drinking with his brother and a friend at his home address. The three of them consumed a carton of full strength beer before attending Sodens Hotel Albury where they continued drinking more full strength beer whilst playing pool amongst themselves. The victim and his friends were playing pool using the adjoining table about 2.30am. The offender approached a friend of the victim and said to him words to the effect of, 'you guys are a bunch of fags and we should go outside and sort this out'. The offender, his brother and his friend began to shove and push the victim's friends. The victim and his friends tried to calm the situation down. When the victim got in between his friend and the offender, the offender grabbed him from behind and with his arm around the neck of the victim. Then the offender took a glass and hit the victim once in the forehead with the glass. The glass smashed and the offender lot go of the victim who was bleeding by that time. Victim's friends assisted him and the police were informed. The offender and his brother were pushed outside in view of their behaviour. When the police arrived at the scene around 3.30am they observed the offender fighting with his brother. Police arrested the offender and explained his rights to him. He was then conveyed to the Albury police station and entered into custody. The offender was not interviewed at that stage due to his level of intoxication. The offender voluntarily participated in an ERISP interview at 9.26am when he was able to do so where he made partial admissions although he did not have memory of the entire incident. The offender was then charged by police. As a result of this incident, the victim was treated at the Emergency section of the Albury Base Hospital. The victim had two lacerations to his forehead from this incident and these lacerations had to be cleaned and sutured before he was discharged from hospital." 5. There is no material from a medical practitioner before me. However, by consent the Crown tendered a colour photograph of the victim showing the wounds sustained in the course of the incident. That photograph shows two distinct wounds. So far as I can ascertain the smaller of the two wounds has 7 sutures and the larger of the wounds 10 or 11 sutures. The wounds are such that some cosmetic scarring would be inevitable, although the hair of the victim would cover at least part of that. Assessment of the Criminality 6. It has not been particularly easy to assess the criminality in this matter. On 20 April 2009 the Crown when asked by me submitted that although the offender was reckless as to causing the wounds the act of the offender picking up a glass and swinging at the victim was intentional. Mr. Reddy on behalf of the offender submitted that the whole of the incident was reckless. Today the Crown maintained its original stance and Mr. Reddy appropriately conceded that the actions of the picking up the glass and swinging the glass was intentional but that the offender was reckless as to the wound. 7. The Crown has charged and the offender has pleaded to Reckless Wounding contrary to s 35(4) of the Crimes Act 1900. I must be very careful not to infringe the principles enunciated by the High Court in Di Simoni v The Queen (1981) 147 CLR 383. In my opinion, given the manner in which the facts are stated within the Agreed Facts, the act of the act of picking up the glass and swinging in the direction of the victim after taking hold of the victim could only be an intentional act. I must proceed on the basis that the wounding was reckless. 8. Further so far as assessing the objective seriousness of the criminality I refer to R v McCullough [2009] NSWCCA 94 in which Howie J said at [37]: "Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27]". 9. The glass used by the offender was used as a weapon. It is to be observed that a glass thrust at a person's head can be a particularly dangerous, and indeed lethal weapon. Indeed, the glass seems to be the weapon of choice for persons intent on doing damage to others at licensed premises. The use of the glass as a weapon is an aggravating feature – see for e.g. the decision of R v Nowak [2008] NSWCCA 89 per Buddin J (Bell JA, Barr J agreeing) at [15]-[17]. 10. While I accept that there may be very good reasons for this plea agreement of which I am not and should not be aware, and while these comments should not be interpreted as any criticism express or implied of either party, the manner in which this matter has been presented to me by the parties creates some interesting practical difficulties, especially considering the decision of Di Simoni. I am of the opinion that the practical reality is that I am being asked to sentence on something that is bordering on a legal fiction. The conduct of the offender was on the Agreed Facts completely unprovoked. However, doing as best I can taking into account the nature of the conduct, the nature of the injuries and the use of the glass as a weapon I am of the opinion that this matter is a little above the half way mark on the scale of objective seriousness for matters of reckless wounding. Maximum Penalty 11. The maximum penalty for the offence of Reckless Wounding is 7 years imprisonment if dealt with on Indictment. This is a matter to which the principles enunciated by the Court of Criminal Appeal in Doan v The Queen (2000) 50 NSWLR 115 apply. Grove J (Spigelman CJ and Kirby J agreeing) in that decision said at [35]: "The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a 'worst case'". Matters of General Principle 12. There are very real issues of general deterrence in this matter. The offence occurred in licensed premises at something after 2am. Precisely why people feel the need to be consuming liquor at that hour of the day escapes me entirely. There are a disturbing number of matters involving drunken and gratuitous violence that come before this Court. I have in other such matters repeated a number of pronouncements of the Court of Criminal Appeal in such matters. It is appropriate that I once again repeat some of those for the benefit of this offender any other person within the community who might be like-minded. 13. In the decision of R v Sayin [2008] NSWCCA 307 Howie J said at [47]: The offence, popularly known as "glassing", is becoming so prevalent in licensed premises that there are moves on foot to stem the opportunity for the offence to be committed by earlier closing times and the use of plastic containers. The courts clearly must impose very severe penalties for such offenders, but of course within the limits afforded by the prescribed maximum penalty. In light of the fact that the maximum penalty for an offence under s 35(2), recklessly inflict grievous bodily harm, is now 10 years imprisonment, the increased maximum penalty should result in a marked increase in the penalty for offences of this nature. Had the sentence this Court is now substituting been imposed for the new offence under the Crimes Act with the increased maximum penalty, it would be arguably manifestly inadequate. 14. The offence with which that offender was charged also carried a 7-year maximum. The offence involved an attack with a glass. The injuries were more serious in that they involved wounds that required 40 sutures, emergency surgery to the eye and a broken nose. The Court of Criminal Appeal imposed a non-parole period of 2 years 3 months with a balance of term of 1 year 6 months. However, clearly enough the Court of Criminal Appeal has signalled that deterrent sentences must be imposed in respect of matters of this type that involve attacks using a glass or bottle. This also demonstrates the significance of the decision in R v Doan. 15. Earlier this year McClellan CJ at CL in R v Wright [2009] NSWCCA 3 said at [1]: "This is yet another case where this Court has been required to consider the appropriate penalty when a young person who has consumed a quantity of alcohol inflicts physical violence of a significant order on another. The facts of this case are not unusual. So far as the criminal law is concerned those who engage in such conduct must understand that the courts will impose significant penalties". 16. The Chief Judge at Common Law also said, although dealing with offending more serious than that with which I am dealing, in the decision of R v McKenna [2007] NSWCCA 113 at [2]: "Members of the community are entitled to walk the streets without fear of being attacked by others intent upon inflicting physical violence. Those who put people in fear and cause serious injury cannot expect any leniency from the law". 17. In the matter presently under consideration the victim was not walking the streets but was in effect minding his own business in the hotel. I do not see that as a particular point of distinction in that as I have previously observed the offender's conduct was entirely unprovoked. 18. Further on this issue of general deterrence, Hulme J said in the decision of R v Corbett [2008] NSWCCA 42 at [10]: "From time to time particular offences have become more common, either throughout the state or in particular towns or parts of it. It is an accepted practice for criminal courts to respond to such increases in offending of a particular type by increasing sentences for such offences and this without any change to the legislative proscription of the conduct or any increase in the penalty prescribed". 19. The Court of Criminal Appeal has made it clear in a number of authorities that deterrent sentences should be imposed in respect of conduct such as I am dealing with in this matter. Further, as I have observed before in this Court, drunken, thuggish and gratuitously violent behaviour resulting in injury to others should not have to be tolerated by the citizens of this city, and such conduct will most certainly not be tolerated by this Court. Indeed, I would expect the decent and respectable citizens of Albury to expect no less. Criminal History 20. His record assists the offender. There are no other matters of violence on his record. Generally, the record in New South Wales consists of driving matters, the most serious of which was driving while disqualified in respect of which he was released on a bond pursuant to s. 9 of the Crimes (Sentencing Procedure) Act 1999. He was sentenced to 30 hours community service for a charge of drive while suspended. That was revoked because of non-compliance. 21. The offender has been convicted of Burglary and Theft, Criminal Damage and Theft from a shop in Victoria. Fines were imposed in respect of all matters. Pre Sentence Report 22. The Pre Sentence Report records the criminal antecedents of the offender. It is indicated, and I accept that 2007 was a difficult period for the offender as his brother to whom he was very close died. The offender before going into custody was employed with a carpet cleaning business. 23. The offender began using cannabis and alcohol when he was 14. He is now 24 and was 23 at the time of the offence. He began to binge drink and this became worse when his mother died. He maintains he ceased using cannabis when obtaining work with the carpet cleaning company. 24. There is apparently no issue of the police facts, although it is recorded that he cannot remember much because of his level of intoxication. The report indicates that the offender although having given some thought to his victim did not appear to fully comprehend the severity of his actions. In this regard I note with some concern that the author of the report notes that, "the offender does not appear to understand the severity of his actions on either himself or the community. The offender appeared to have little insight into the effects of his binge drinking in regard to his behaviour." 25. The offender is suitable for supervision, but is unsuitable for Community Service and ineligible for Periodic Detention. In any event, I am of the opinion that this matter is too serious for any sentencing disposition other than full time custody. Plea in Mitigation 26. When this matter was before me on 20 April 2009 Mr. Reddy for the offender put that the offender was heavily intoxicated at the time of the offence. Today Mr. Reddy submitted that the intoxication is a mitigating factor. In all of the circumstances I am of the opinion that intoxication is neutral in this matter. This is essentially because of the long period of time over which the offender has been binge drinking. Given the extensive history of binge drinking it is my opinion the offender cannot now argue that it was the alcohol on this occasion that made his act out of character. In respect of the issue of intoxication, it is with unfeigned respect that I gratefully adopt what was said by Knox SC DCJ in R v Kite [2008] NSWDC 7 at [109] in that: "Intoxication is relevant in determining the degree of deliberation involved in the commission of the offence. In some cases it may mitigate the crime because it caused the offender to act out of character: R v Gordon (1994) 71 A Crim R 459 at 467. In other cases it may aggravate the offence because of the recklessness with which the offender became intoxicated. The voluntary ingestion of alcohol or drugs by an offender, who knows he has a problem with alcohol/drugs and has a history of committing offences while intoxicated may be an aggravating factor: R v Fletcher-Jones (1994) 75 A Crim R 381; R v Sotheren [2001] NSWCCA 425. In many cases intoxication will be neither an aggravating nor mitigating circumstance: R v Gordon at 467-468; R v Wright (unrep, 28/2/1997, NSWCCA, at pp 6-7). 27. I note that the decision at first instance in Kite was recently reviewed by the Court of Criminal Appeal, but I also note the findings as to intoxication did not form any part of the appeal. 28. It was submitted and I accept that the offender began binge drinking in an attempt to deal with significant family tragedy including his mother dying of cancer when he was 18 years of age, and that at the time of his mother's death there were two younger siblings. Further, an older brother died of a heart attack at the age of 27. The submission that the offender found this a very traumatic time is certainly made good. It seems that this offender has done what regrettably so many do is attempt to "drown their sorrows" in alcohol and then having difficulty in controlling their drinking. 29. Generally, it was put and I accept that the offender has a minimal education and has only basic literacy and numeracy skills. He has had a reasonable employment history and I accept the submission that he has a job waiting for him upon his eventual release. General Remarks 30. I am obliged to give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. It is inappropriate to impose a custodial sentence unless I first of all come to the conclusion that no other sentence other than a sentence of imprisonment is appropriate in all the circumstances. It is also appropriate that I remind myself of the decision of R v Dodd (1991) 57 A Crime R 349. In that decision, the Court of Criminal Appeal (Gleeson CJ; Lee CJ at CL and Hunt J) said at p. 354: "As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594." 31. It should be tolerably plain from the above that I have reached the very firm opinion that no other sentence other than full time custody is appropriate in this matter. The issue arises as to whether there are special circumstances. Given the age of the offender, the fact that this is his first time in custody and the need for supervision particularly on the issue of alcohol abuse, I am prepared in this matter to vary the statutory ratio between the non-parole period and balance of term. 32. Having considered the objective seriousness of the offending and the mitigating and aggravating circumstances as I have found them to be I am of the opinion that the offending is deserving of a sentence of two years imprisonment. Allowing for the 20% discount for the utilitarian value of the plea and allowing for some pragmatic "rounding down" the head sentence is then 19 months. I have already indicated I find special circumstances. Formal Orders 33. In respect of the offence that the offender: On 19 July 2008 at Albury in the State of New South Wales, recklessly did wound Michael Klemm 34. The offender is convicted. 35. Consequent upon that conviction the offender is sentenced to a non-parole period of 11 months to commence on 19 July 2008 and expire on 18 June 2009. Thereafter I specify a balance of term of 8 months to commence on 19 June 2009 and expire on 18 February 2010. Gordon Lerve Magistrate 30 April 2009 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.